Noor v Police No. Scgrg-00-352

[2000] SASC 261

NOOR  v  POLICE
[2000] SASC 261

Magistrates Appeal

1................ DUGGAN J....... The appellant was convicted in the Holden Hill Magistrates Court on charges of assault occasioning actual bodily harm and common assault.  The charges were laid following an incident which took place at the appellant’s service station on 10 February 1999.  According to the prosecution case, there was an altercation between the appellant and two people who came into the service station.  It is unnecessary to refer to the facts other than to say that the appellant claimed in evidence that he was acting in self-defence in relation to the more serious offence.  The learned magistrate rejected the appellant’s evidence.  The case turned on the actions of the participants and their respective positions at various times.

1. Subsequent to the Magistrates Court hearing the appellant was advised by a Mr David Hassen, who works nearby, that he saw the altercation.  He said that he had not mentioned this to the appellant on any previous occasion because he was unaware that the appellant had been charged with the offences.

2. Mr Hassen gave evidence before me.  After hearing his evidence it was apparent that there is a significant possibility that the court below, acting reasonably, might have acquitted the appellant if the new evidence had been before it at the trial (R v Winslett (1992) 60 SASR 1). It is conceded by the respondent that the evidence could not have been discovered at the time of the trial through the exercise of reasonable diligence.

3. The respondent did not concede the accuracy of the evidence, but did not dispute that it was appropriate in the circumstances to set aside the convictions.  At the hearing of the appeal I quashed the convictions, set aside the sentence and orders of the learned magistrate and directed that there be a new trial.

4. The remaining issue concerns the question of costs.  The appellant argued that I should order that the costs of the appellant on appeal and at the trial be met by the respondent.  Counsel for the respondent urged me not to make any order as to costs.

5. It was put to me by counsel for the appellant that in the event of a further trial in the Magistrates Court, the magistrate could not make any order as to the costs of the first trial.  In my view it is unnecessary to decide whether this is the correct view of the matter.  After considering the arguments I have decided to reserve the question of costs both on this appeal and in relation to the first trial.  The circumstances are unusual, but in the event of a further trial I would be better placed to make an assessment as to the merits of an order for costs at the conclusion of such trial and any appeal which might follow it.  If it is decided not to proceed with a new trial then the matter can be called on again before me for consideration as to the question of costs.

6. I will give the parties liberty to bring the matter on for further argument as to costs.